THE HON’BLE JUSTICE GADI PRAVEEN KUMAR

C.M.A. No.541 of 2023

JUDGMENT:

Heard Sri Dr.P.Bhaskar Mohan, learned counsel for the appellants

and Ms.C.Jyotsna Devi, learned counsel appearing for the respondents, and

perused the record.

2. The present CMA is filed assailing the order dated 02.08.2023 passed by the learned IX Additional District Judge, Ranga Reddy District at L.B. Nagar in I.A.No.151 of 2022 (Old I.A.No.359 of 2020) in O.S.No.3 of 2015, which is filed under Order IX Rule 13 CPC and a consequential

direction to set aside the ex-parte decree dated 30.11.2017.

3. The appellants herein and the petitioners in I.A. are defendants in the suit filed by the respondents/plaintiffs for partition and separate

possession of the suit schedule properties.

4. The facts leading to the filing of I.A.No.151 of 2022 are that during pendency of suit O.S.No.3 of 2015, as the appellants herein failed to appear before the Court despite being served with summons through appellant No.1, they were set ex-parte on 04.06.2015. On 22.07.2015, P.W.1 was partly examined and Exs.A-1 to A-7 were marked. On

14.10.2015 P.W.1 was further examined in chief and Exs.A-8 and A-9 were marked. On 13.11.2015, chief affidavits of P.Ws.2 and 3 were filed. P.W.2 was further examined on 29.12.2015. P.W.3 was further examined on 09.11.2016, and later after hearing arguments, judgment was pronounced on 30.11.2017. Subsequently, the appellants filed I.A.No.859 of 2018 under Order XXVI Rule 13 CPC, which was renumbered as I.A.No.269 of 2022 and another I.A.No.860 of 2018 under Order XX Rule 18 CPC, which was renumbered as I.A.No.152 of 2022. I.A.No.151 of

2022 was filed to set aside the ex-parte decree dated 30.11.2017.

5. The learned Trial Court held that I.A.No.151 of 2022 was filed on 16.09.2020 i.e., after 3 years of passing of decree on 30.11.2017, and that the only reason shown in the affidavit is that respondent No.1 used to reside in Tirumalapur village and that the other respondents were residing in other places. The learned Trial Court further held that the addresses of the respondents as shown in the I.As. as well as in the plaint are same and that no documents were filed by the respondents to show that they are residing at different places. Therefore, the learned Trial Court came to conclusion that it cannot be said that no summons were served on the appellants/petitioners/defendants in the suit, and thereby dismissed the application, which is filed under Order IX Rule 13 CPC.

6. Aggrieved by the same, the present Appeal is filed.

7. Learned counsel for the appellants contended that the appellants / defendants were set ex-parte and decree was passed on 30.11.2017, and that after the death of appellant No.1 on 22.01.2017 and only after receiving summons in I.A.Nos.859 and 860 of 2018, the appellants came to know about passing of ex-parte decree, and thereafter the appellants filed the I.A. seeking to set aside the ex-parte decree.

8. On the other hand, the respondent No.3 herein filed counter in I.A.No.151 of 2022 (Old I.A. No.359 of 2020) on 23.06.2023 before the learned Trial Court stating that the respondents/plaintiffs reiterated that the decision to suo motu allow the petition and proceed with the trial does not, either explicitly or implicitly, admit the allegations made against the petitioners/defendants regarding the non-receipt of notice. The sole intention behind allowing the present petition was to enable the case to be contested on its merits, rather than being dismissed on procedural technicalities.

9. Learned counsel for the respondents fairly reiterates the same stating that respondents/plaintiffs are willing to cooperate with the trial and decide the issue on merits duly affording reasonable opportunity to both sides.

10. Therefore, this Court is of the opinion that the learned Trial Court ought to have examined the contentions raised in the counter-affidavit filed on behalf of respondents/plaintiffs and proceeded with affording reasonable opportunity to th